New York authorities grapple with the “heckler’s veto”

New York’s Metropolitan Transportation Authority “approved new guidelines for advertisements on Thursday, prohibiting those that it ‘reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace,’” as reported by the New York Times.

Yes, this is a response to the antics of pink-clad storm trooper Mona Eltahawy and her cohorts, who began attacking posters they didn’t like with cans of spray paint, screaming insults at any who dared to interfere with their “expression of free speech” by preventing them from suppressing speech they don’t think anyone else should see. The posters in question said “In any war between the civilized man and the savage, support the civilized man… Support Israel, defeat jihad.”

The Times reports on the MTA meeting, and the resulting, somewhat ambiguous rules change:

The 8-to-0 vote by the authority’s board came three days after pro-Israel ads characterizing Islamist opponents of the Jewish state as being “savage” began appearing in subway stations, setting off vandalism, denunciations of the authority and calls for the ads’ removal.

The authority had initially rejected the ads, citing their “demeaning” language. The group responsible for the ads, the American Freedom Defense Initiative, sued, and in July won a federal court ruling on First Amendment grounds.

“We’ve gotten to a point where we needed to take action today,” Joseph J. Lhota, the authority’s chairman, said at a news conference on Thursday.

The authority said it believed the new guidelines adhered to the court’s ruling and would withstand any potential First Amendment challenge. Under the new policy, the authority will continue to allow so-called viewpoint ads, but each will be required to include a disclaimer noting that the ad does not imply the authority’s endorsement of its views.

“You deal with a free-speech issue with more free speech,” Mr. Lhota said.

(Emphasis mine.) Pamela Gellar, who owns the defaced posters (and was, of course, “repeatedly shouted down” by cretins holding “The subway belongs to the 99 Percent” signs when she tried to speak at the MTA board meeting) points out that this rules change does not necessarily mean her free speech will be restricted, although the media is presenting it that way.

“The fact is, the MTA doesn’t mean that it will be enforcing the Sharia or adhering to the blasphemy laws under Islamic law,” Gellar writes on her blog. “The enemedia is assuming that they will prohibit our ad, but it is not necessarily so. And if they do, we will certainly fight back. It’s fairly safe to say that the MTA is referring to prohibiting ads that genuinely incite to violence, such as ads from Occupy Wall Street calling for people to get guns and shoot businessmen and police. It’s the same as it was before. If they block us, we’ll sue again.”

If the only change resulting from this meeting is the requirement to add a disclaimer that posters don’t represent the official viewpoint of city authorities, that’s not much of a problem. It would require a bit of reprinting for the original posters (or could the disclaimer be added with a sticker?) That would place an additional expense upon Gellar, and anyone else posting issue advocacy messages, but she doesn’t seem particularly intimidated by the burden.

On the other hand, does anyone really think the lack of a sufficiently obvious disclaimer is what drove Eltahawy and her fellow censors to grab their paint cans? If the MTA is concerned about civil unrest, they will soon find that adding a bit of legal verbiage to the posters does very little to calm the Islamist activists or their fellow travelers, who are hoping to exercise the “heckler’s veto.”

Victory would be getting the kind of ruling that Gellar says they did not get today, by causing such a fuss that the MTA throws up its collective hands and rules against anyone posting “controversial” speech at all. Once that principle has been established, censorship requires only the manufacture of a little “controversy.” As it goes in the halls of the United Nations, so it goes in the subways running beneath it.

Update: The Blaze dug into those new MTA regulations more, and found a potentially troubling passage, which states:

“The advertisement, or any information contained in it, is directly adverse to the commercial or administrative interests of the MTA or is harmful to the morale of MTA employeesor contains material the display of which the MTA reasonably foresees would incite or provoke violence or other immediate breach of the peace, and so harm, disrupt, or interfere with safe, efficient, and orderly transit operations.”

This could potentially enable the “heckler’s veto” at full strength: if a gang of surly violence-prone self-appointed censors seems likely to become explosively angry about a particular expression of free speech, the MTA will muzzle it pre-emptively, to avoid offending them. All that remains is to see how these regulations are implemented in practice. Will the MTA apply them only to speech that explicitly encourages violence, or will they be interpreted more broadly, to suppress anything that might prompt Mona Eltahawy to bust out her paint can?